Environmental Law

As Canadians become ever more vigilant about the state of the environment and insistent that offenders of environmental laws be held accountable, we have witnessed an increasing degree of government regulation and corresponding activity intent upon protecting the environment.

Indeed, the environment has become such an important issue, it is imperative that anyone in a business venture be fully informed on what the relevant environmental laws allow and prohibit, and how to respond to the demands of both governments and the public.

All levels of government across Canada have enacted legislation to regulate the impact of business activities on the environment. Environmental legislation and regulation is not only complex, but all too often exceedingly vague, providing environmental regulators with considerable discretion in the enforcement of the law.

Consequently, courts have been active in developing new standards and principles for enforcing environmental legislation. In addition, civil environmental lawsuits are now commonplace in Canadian courtrooms involving claims over chemical spills, contaminated land, noxious air emissions, noise and major industrial projects. The result has been a proliferation of environmental rules and standards to such an extent that one needs a “road map” to work through the legal maze.

The environment is not named specifically in the Canadian Constitution and consequently neither federal nor provincial governments have exclusive jurisdiction over it. Rather, jurisdiction is based upon other named “heads of power ”, such as criminal law, fisheries or natural resources. For many matters falling under the broad label known as the “environment”, both the federal and provincial governments can and do exercise regulatory responsibilities.

This is referred to as “concurrent jurisdiction”, which, in practical terms for business managers, means that both provincial and federal regulations must be complied with. Historically, the provinces have taken the lead with respect to environmental conservation and protection. However, the federal government is increasing its role in this area and some municipalities are also becoming more active, as is evidenced, for example, by their use of by-laws to regulate such matters as the development of contaminated land, the discharge of liquid effluent into municipal sewage systems, and reporting on the emission of chemical substances in the course of business operations.

Environmental statutes create offences for non-compliance that can impose substantial penalties, including million-dollar fines and/or imprisonment. Many provide that maximum fines are doubled for subsequent offences and can be levied for each day an offence continues. Most environmental statutes impose liability on directors, officers, employees or agents of a company where they authorize, permit or acquiesce in the commission of an offence, whether or not the company is prosecuted. Companies and individuals may escape environmental liability on the basis that they took all reasonable steps to prevent the offence from occurring. However, in a growing number of cases, liability may be absolute if a spill or discharge of a contaminant occurs.

Some statutes create administrative penalties, which are fines that can be levied by government regulators as opposed to the courts. There are also some jurisdictions that allow for tickets, similar to motor vehicle infractions, to be issued for non-compliance. Enforcement officers generally have rights to inspect premises, issue stop-work orders, investigate non-compliance and obtain warrants to enter and search property, and seize anything that is believed to be relevant to an alleged offence. A number of jurisdictions also have administrative tribunals to handle appeals of decisions made by such inspectors and other government officials.

Federal Environmental Law and Regulation

Alberta

British Columbia

Ontario

Quebec

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